B-221889, JAN 31, 1987

B-221889, JAN 31, 1987

PROCUREMENT - BID PROTEST - REMEDIES - GAO DECISIONS - IMPLEMENTATION - ADMINISTRATIVE DELAYS DIGEST: SECRETARY OF THE NAVY IS REQUESTED TO OBTAIN INFORMATION TO EXPLAIN WHY NAVAL FACILITIES ENGINEERING COMMAND (NAVFAC) IGNORED THE PERFORMANCE STAY PROVISIONS OF THE COMPETITION IN CONTRACTING ACT (CICA), WHY IT TOOK MORE THAN THE 60 DAYS STATUTORY PERIOD FOR NAVFAC TO ADVISE GAO THAT IT WOULD NOT IMPLEMENT OUR RECOMMENDED REMEDY IN THE PROTEST, AND TO TAKE APPROPRIATE ACTION TO ASSURE FULL COMPLIANCE WITH THE CICA IN THE FUTURE.

THE HONORABLE JOHN F. LEHMAN:

WE ARE ENCLOSING A COPY OF OUR DECISION, HOWARD MANAGEMENT GROUP, B-221889, JULY 3, 1986 WHEREIN WE SUSTAINED THE PROTEST AND RECOMMENDED THAT THE PROTESTER'S BID BE CONSIDERED. WE CONCLUDED THAT IF THE PROTESTER WERE FOUND TO BE A RESPONSIVE, RESPONSIBLE BIDDER, THE CONTRACT PREVIOUSLY AWARDED TO DON MOORHEAD CONSTRUCTION SHOULD BE TERMINATED AND AWARD MADE TO HOWARD.

THE 60-DAY STATUTORY REPORTING PERIOD REFERRED TO ABOVE EXPIRED IN SEPTEMBER. COMMENCING ON OCTOBER 15, THIS OFFICE CALLED NAVFAC ON EIGHT DIFFERENT OCCASIONS TO DETERMINE WHAT, IF ANYTHING, HAD HAPPENED WITH OUR JULY 3 RECOMMENDATION.

ON OCTOBER 29, 1986, WE RECEIVED A LETTER DATED OCTOBER 23 FROM REAR ADMIRAL F. G. KELLEY, ACTING NAVFAC COMMANDER, INDICATING THAT NAVFAC DECLINED TO FOLLOW OUR RECOMMENDATION IN PART BECAUSE THE "WORK IS 70 PERCENT COMPLETE WITH 55 PERCENT OF THE CONTRACT PERFORMANCE PERIOD HAVING EXPIRED AND ALL MATERIAL HAS BEEN ORDERED AND OVER 90 PERCENT OF IT HAS EITHER BEEN INSTALLED OR IS STORED ON SITE."

UPON RECEIPT OF ADMIRAL KELLEY'S LETTER WE INQUIRED AT KINGS BAY TRIDENT SUBMARINE BASE AS TO:

-- WHETHER THE NAVY HAD EVER PREPARED A DETERMINATION AND FINDING (D&F) AUTHORIZING CONTINUED PERFORMANCE IN THE FACE OF PROTEST AND

-- WHO, IF ANYONE, HAD AUTHORIZED SUCH CONTINUED CONTRACT PERFORMANCE.

WE FOUND THAT THE ONLY D&F EXECUTED BY NAVFAC WAS SIGNED BY ADMIRAL KELLEY AND DATED JUNE 11, 1986, MORE THAN 3 MONTHS AFTER NAVFAC WAS NOTIFIED OF HOWARD'S PROTEST. THE D&F CONCLUDED THAT CONTINUED PERFORMANCE WAS JUSTIFIED IN THE BEST INTERESTS OF THE GOVERNMENT, BASED IN PART ON THE FACT THAT PERFORMANCE WAS NOT SUSPENDED AT THE TIME NAVFAC WAS FIRST ADVISED OF THE PROTEST. THE D&F FURTHER STATED THAT THE CONTRACTING OFFICER DID NOT THEN SUSPEND THE CONTRACT BECAUSE HE DECIDED THAT THE PROTEST WAS CLEARLY WITHOUT MERIT.

AS INDICATED, WE HAD FOUND THAT THE PROTEST WAS MERITORIOUS. HAD AWARD TO HOWARD BEEN POSSIBLE, THE GOVERNMENT COULD HAVE SAVED $369,361. WE ARE CONCERNED WITH NAVFAC'S VIOLATION OF LAW IN FAILING TO COMPLY WITH THE SUSPENSION OF PERFORMANCE PROVISIONS OF CICA AT THE TIME NAVFAC WAS NOTIFIED OF THE PROTEST AND WITH THE FAILURE TO COMPLY WITH THE CICA REQUIREMENT THAT WE BE NOTIFIED OF AGENCY DECISIONS, IN THIS CASE THE D&F ADMIRAL KELLEY BELATEDLY SIGNED, TO AUTHORIZE CONTINUED CONTRACT PERFORMANCE.

THESE EVENTS ARE BEING REPORTED TO THE CONGRESS AS REQUIRED BY CICA (THIS WAS THE ONLY INSTANCE IN FY 1986 IN WHICH AN AGENCY DID NOT IMPLEMENT OUR RECOMMENDATION AND IS THE ONLY INSTANCE WE KNOW OF WHERE AN AGENCY VIOLATED THE STATUTORY PROVISIONS OF CICA). WE WOULD APPRECIATE RECEIVING NAVFAC'S EXPLANATIONS FOR IGNORING CICA REQUIREMENTS, FOR GIVING US INCORRECT INFORMATION VIS-A-VIS SUSPENSION OF PERFORMANCE, FOR NOT ADVISING US IN JUNE OF ADMIRAL KELLEY'S JUNE 11, 1986, D&F, AND FOR TAKING SO LONG (MORE THAN 100 DAYS AND EIGHT TELEPHONES CALLS) TO ADVISE US THAT OUR RECOMMENDATION WOULD NOT BE FOLLOWED. WE WOULD APPRECIATE ALSO YOUR ADVICE AS TO ACTIONS TAKEN TO ASSURE FULL COMPLIANCE IN THE FUTURE WITH THE REQUIREMENTS OF CICA.